Draft Rule Clarifies Protection for U.S. Streams, Wetlands

WASHINGTON, DC, March 25, 2014 (ENS) – The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers today jointly released a draft rule to clarify protection for streams and wetlands under the Clean Water Act.

The proposal provides that under the Clean Water Act most seasonal and rain-dependent streams are protected. In addition, wetlands near rivers and streams are protected under the act.

Other types of waters may have what the two agencies called “more uncertain connections with downstream water.” In these situations, “protection will be evaluated through a case specific analysis of whether the connection is or is not significant,” the agencies said.

Their proposal requests public comment on adding to the categories of protected waters without case specific analysis. Over the next 90 days, the two agencies will be holding discussions around the country to gather input to shape a final rule.

The Clean Water Act prohibits the discharge of pollutants, including dredged or fill material, into “navigable waters,” defined in the act as the “waters of the United States,” without a permit.

But determining Clean Water Act protection for streams and wetlands became confusing and complex following U.S. Supreme Court decisions in 2001 and 2006.

In January 2001, the Corps’ implementation of section 404 of the Clean Water Act changed when the Supreme Court decided a case known as Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, or SWANCC.

The Supreme Court ruled that Corps guidance known as the migratory bird rule could no longer be used as a basis to assert Clean Water Act jurisdiction over a water or wetland.

The court ruled that the Corps had exceeded its authority in asserting jurisdiction over certain ponds based on their use by migratory birds. The breadth of the SWANCC holding has been the subject of considerable dispute. Click here to see a thorough discussion of this case by the Government Accountability Office. http://www.gao.gov/assets/250/241520.pdf

In 2006, the Supreme Court decided the case of Michigan developers John Rapanos and June Carabell who wanted to fill their wetlands to build a shopping mall and condos.

In Rapanos v. United States, the Supreme Court ruled that the term “waters of the United States” “includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams … oceans, rivers, [and] lakes.'”

The two Supreme Court decisions have left about 20 million wetland acres and two million miles of streams at increased risk of pollution and degradation.

Since then, members of Congress, state and local officials, industry, agriculture, environmental groups, and the public asked for a rulemaking to provide clarity.

About 60 percent of stream miles in the United States only flow seasonally or after rain, but affect the downstream waters. Roughly 117 million people – one in three Americans – get drinking water from public systems that rely in part on these streams.

The definitions of waters proposed today will apply to all Clean Water Act programs. The proposed rule does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the U.S. Supreme Court’s more narrow reading of Clean Water Act jurisdiction.

“We are clarifying protection for the upstream waters that are absolutely vital to downstream communities,” said EPA Administrator Gina McCarthy.

The health of rivers, lakes, bays, and coastal waters depend on the streams and wetlands where they begin, McCarthy says.

Streams and wetlands trap floodwaters, recharge groundwater supplies, remove pollution, and provide habitat for fish and wildlife. They are also economic drivers because of their role in fishing, hunting, agriculture, recreation and power generation.

“Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations,” McCarthy said.

“America’s waters and wetlands are valuable resources that must be protected today and for future generations,” said Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy. “Today’s rulemaking will better protect our aquatic resources, by strengthening the consistency, predictability, and transparency of our jurisdictional determinations. The rule’s clarifications will result in a better public service nationwide.”

Many environmental groups agree.

Peter Lehner, executive director of the Natural Resources Defense Council, said, “This is good news for boaters, anglers, swimmers and families who rely on clean drinking water. EPA took an important step to finally rescue these waters from legal limbo. Even though these are common-sense protections, the polluters are sure to attack them. People who care about clean water need to make their voices heard in the comment period.”

North Carolina Wildlife Federation CEO Tim Gestwicki said, “This is a huge step forward for protecting our waters and wildlife. We simply cannot protect our rivers, lakes, and bays without protecting the many small streams and wetlands that feed into them.”

“The proposal clarifies which waters are – and which are not – protected by the Clean Water Act. It will protect many streams and wetlands that are currently in legal limbo,” said Gestwicki. “The rule also specifically excludes many man-made ditches, ponds, and irrigation systems and honors the law’s current exemptions for normal farming, ranching, and forestry practices.”

The proposed rule preserves the Clean Water Act exemptions and exclusions for agriculture. EPA and the Army Corps have coordinated with the U.S. Department of Agriculture to develop an interpretive rule to ensure that 53 specific conservation practices that protect or improve water quality will not be subject to Section 404 dredged or fill permitting requirements.

Agricultural advocates are generally supportive. The Center for Rural Affairs predicts that the new rule will provide much needed clarity in Clean Water Act enforcement that will be advantageous across rural and small town America.

“Rural America – and the family farmers, ranchers and small towns therein – are the tip of the spear in protecting the quality of the water of the United States,” said John Crabtree of the Center for Rural Affairs.

“The proposed rule is a commonsense effort to clear the regulatory waters, protect the quality of the nation’s surface waters, and provide an environment in which economically vital activities such as hunting, fishing and birding as well as farming and ranching can both thrive and contribute to a better quality of life and safer drinking water for those of us that live here, and also for our neighbors downstream,” said Crabtree.

National Farmers Union Senior Vice President of Programs Chandler Goule said, “NFU has long advocated for increased certainty surrounding Clean Water Act requirements for family farmers and ranchers in the wake of complicating Supreme Court decisions. Today’s draft rule clarifies Clean Water Act jurisdiction, maintains existing agricultural exemptions and adds new exemptions, and encourages enrollment in U.S. Department of Agriculture conservation programs.

“In addition, farmers and ranchers who are voluntarily enacting certain conservation practices on their farms will be exempt from Clean Water Act Section 404 permitting requirements. Today’s ag-friendly announcement clearly indicates that NFU and other agricultural stakeholders made their voices heard, and EPA took notice.”

The agencies will work together to implement the new agricultural exemptions and periodically review, and update USDA’s Natural Resources Conservation Service conservation practice standards and activities that would qualify under the exemption. Any agriculture activity that does not result in the discharge of a pollutant to waters of the U.S. still does not require a permit.

The proposed rule also helps states and tribes. According to a study by the Environmental Law Institute, 36 states have legal limitations on their ability to fully protect waters that aren’t covered by the Clean Water Act.

The proposed rule is supported by the latest peer-reviewed science, including a draft scientific assessment by EPA, which presents a review and synthesis of more than 1,000 pieces of scientific literature. The rule will not be finalized until the final version of this scientific assessment is complete.